Introduction

The controversy over the color conversion of black and white motion pictures first arose in the spring and summer of 1986. Since then, Congress has held hearings on the matter and Representative Richard Gephardt has proposed legislation1 amending the Copyright Act of 19762 limiting material alteration, including colorization of motion pictures. Most recently, the Copyright Office issued its Registration Decision.

The Copyright Office issued a Notice of Inquiry3 on September 15, 1986, after receiving applications for registration of colorized versions of ten motion pictures and one television program. Comments were solicited in the following four areas:

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Update on the Film Colorization Debate
Copyright Office Issues Registration Decision and Congress Considers Proposed Legislation
by
Richard J. Greenstone

1. Which steps, if any, in the colorization processes involve individual creative human authorship?

2. Who are the authors of the copyrightable elements, if any, in colorized film?

3. With specific reference to the role of computer programs in colorization processes: (a) How are colors selected? How are colors made available for selection? What factors influence color selection? How wide is the range of choice? (b) In addition to coloring in the strict sense, are other cinematographic contributions, such as animation or other hand or computer assisted effects, utilized in colorizing?

4. Are all colorization processes intended solely to create videotapes in color? Are any methods now available or under development that would permit the commercially feasible colorization of 35mm prints of a quality that would permit theatrical distribution?4

The Copyright Office - in a decision dated June 11, 1987, signed by Ralph Oman, the Register of Copyrights - issued its decision and proposed rule5 on the copyright registration of colorized versions of black and white motion pictures. The 14-page notice provides for copyright registration of colorized motion pictures based on similar processes developed by Colorization, Inc., of Toronto, Canada, and Color Systems Technology, Inc., of Hollywood, California. The decision also invited public comment for a 30-day period "with respect to proposed regulations that would require the deposit of a black and white print along with a copy of the computer-colorized version in order to register a claim to copyright in the selection of colors."6

The decision notes that 46 comments were filed, with the majority directed towards aesthetic considerations. Only a few comments responded to the four questions set out above. Of those comments, only the two pictures involving color conversion with the aid of a computer were discussed. No comments addressed the chromoloid method7 of color conversion, and as a result, the Copyright Office Registration Decision does not apply to that process.8

The Registration Decision summarizes the submitted comments in two parts: first, the process of conversion from black and white to color, and second, legal arguments for and against colorization.

Color Conversion Process

The colorization process covered by the Registration Decision involves the transfer of an unblemished black and white print to videotape. The tape is broken down into discrete scenes and sequences. A color plan is developed for each scene as well as the entire work. Color selections are made from a universe of 16 million colors with a possible 4,096 colors for each movie with 64 colors available for each scene.9  Colors are selected to convey a time period, create a mood and ensure historical accuracy as to color and tint of the actors and actresses. An artist uses a graphics tablet and electronic palette to hand-color key frames. A computer then colors the intervening frames adjusting to variations in the luminosity of the black and white motion picture. Finally, each color scene is reviewed and revised where necessary to ensure consistency between the computer-colored frames and the hand-colored key frame.

Legal Arguments

The Registration Decision reviewed the legal arguments from both those for and against the colorization process. The decision notes a consensus among the submissions that original authorship is inherent in a colorized version of a black and white motion picture making that work proper copyright subject matter. The decision examines various rationales for this consensus, stating: "The more prevalent justification is that the selection, coordination and application of color, and the review of the final product amount to 'individual creative human authorship."'10

The Registration Decision notes that the comments opposing registration assert "that colorizing is a technical process that does not have sufficient human authorship to merit copyright protection."11  The decision cites reasons given for this position. First, "selection of palette is an idea that has not as yet produced any copyrightable expression."12  Second, color facts13 are integrated into preexisting visual patterns in the black and white film with these patterns serving as the actual expression. Third, copyright in the computer colorization software cannot support a claim in the output-the color-converted work. The Registration Decision only refers to these arguments; responses to the arguments are not incorporated in the final decision.

One other issue appears to have influenced the Copyright Office: "[E]ven if sufficient human authorship exists given today's colorization technology, what happens to a copyright claim when the complete coloring process is done by a computer program?"14  The Copyright Office answered by indicating that it will monitor "technological developments, and may reconsider the issue if the role of the computer in selecting the colors becomes more dominant.15

Statutory, Regulatory, and Judicial Foundations

The Copyright Office Registration Decision examines both legislation and judicial opinion in rendering its opinion.

Two statutes and a regulation lay the foundation of the decision. First, a derivative work, as defined by the Copyright Act, is "a work based upon one or more preexisting works... [which] may be recast, transformed, or adapted... [and consists of] modifications, which, as a whole, represent an original work of authorship."16  Second, copyright protection in a derivative work "extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."17  Third, mere variations of coloring are not subject to copyright.18

The decision also reviews two judicial standards. L. Batlin & Son, Inc. v. Snyder[19] is cited for the proposition that a derivative work merits copyright protection if it is a distinguishable variation that is not merely trivial. There was disagreement among the submitted comments as to what makes a variation distinguishable, and whether a higher standard is required for a derivative work based on a work already in the public domain. The Registration Decision invokes Batlin stating that a higher standard is necessary for examining additions to public domain works. The Copyright Office decision highlights two important limitations of derivative works which appear to directly circumscribe protection for colorized works.

1. [T]o support a copyright the original aspects of a derivative work must be more than trivial.

2. [T]he scope of protection afforded a derivative work must reflect the degree to which it relies on the preexisting material and must not in any way affect the scope of any copyright in this preexisting material."20

In addition, the Registration Decision relies on Pantone, Inc. v. A.I. Friedman, Inc.,21 in support of registration for colorized works where a compilation of colors on the basis of color selection requires "careful consideration of numerous artistic factors including the aesthetic attributes of each shade and its use in the commercial art field."22

Standard for Registration

The Copyright Office concludes in its decision that computer-colorized black and white motion pictures are registrable as derivative works where those works "reveal a certain minimum amount of individual creative human authorship."23  The Copyright Office Registration Decision notes that determining the presence of human authorship in colorized works is quite difficult.

The decision also reaffirms the present regulation24 prohibiting the registration of works which exhibit only mere variations of coloring. In the future, the regulation will deny registration where authorship consists of the addition of a "relatively few number of colors to an existing design or work"25 or where registration is claimed based on the arrangement or combination of colors "because the original black and white film predetermines the arrangement of colors."26  But, "[r]egistration is not precluded ... where the work consists of original selection, arrangement, or combinations of a large number of colors, or where the lines of an original design are fixed by gradations of numerous colors."27

The Copyright Office, in determining whether the addition of color represents an original work of authorship, will apply the following criteria:

(1) Numerous color selections must be made by human beings from an extensive color inventory.

(2) The range and extent of colors added to the black and white work must represent more than a trivial variation.

(3) The overall appearance of the motion picture must be modified; registration will not be made for the coloring of a few frames or the enhancement of color in a previously colored film.

(4) Removal of color from a motion picture or other work will not justify registration.

(5) The existing regulatory prohibition on copyright registration based on mere variations of color is confirmed.28

Scope of Protection

The scope of registration is limited by the Copyright Office Registration Decision, which reaffirms the statutory division between protection for derivative works and for preexisting works without copyright protection.29  Thus, the underlying black and white work, if in the public domain, will retain that status so that others, such as competing colorizers, may exploit the work.

Proposed Deposit Requirement

The Copyright Office also proposes that the copyright claimant submit the original black and white version of the work along with the colorized version. The reasons are twofold: first, so that a copyright examiner can compare the two works facilitating determination whether the colorized version satisfies the standards for copyright registration; and, second, to enrich the black and white film collection at the Library of Congress.30

Proposed Legislation

Another major development in the colorization debate is the introduction of proposed legislation by Representative Richard Gephardt of Missouri. This legislation, known as the Film Integrity Act of 1987, would add a section 119 to the Copyright Act of 1976 limiting exclusive rights to motion pictures.

 The proposed legislation provides that "qualified consent" for materially altering and colorizing motion pictures could be given only by "artistic authors"31 or their assignees (who also must be artistic authors). In addition, heirs inheriting such qualified consent rights may assign only to other artistic authors. Such right of consent does not expire when the copyright expires. A material alteration (including colorization) by someone who is not the artistic author (or a qualified assignee) would be tantamount to copyright infringement. Finally, any material alteration or colorization of a motion picture without the consent of its artistic authors would be ineligible for copyright protection.

Conclusion

The summary of developments just described raises interesting, ongoing issues in the colorization debate. The Copyright Office states in its Registration Decision that the Copyright Office "will monitor technological developments, and may reconsider the issue if the role of the computer in selecting the colors becomes more dominant."32  Would the colorizers serve their best interest by freezing the level of automation now used in the process so that their versions will qualify for copyright protection? Will the proposed legislation finally bring the right of droit moral (moral rights) into United States Copyright law, or will the proposal be the final impetus for the United States to accede to or reject the Berne Convention? These and other issues will arise upon implementation of the new Copyright Office regulation, and as interested parties debate the merits of the Gephardt bill.

Endnotes

1. Film integrity Act of 1987.

2. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C.A. Secs. 101-914 (West 1977 & Supp. 1986)).

3. 51 Fed. Reg. 32665 (1986) (Registration of Claims to Copyright, Notice of Inquiry; Colorization of Motion Pictures).

4. Registration Decision 34.

5. Copyright Registration for Colorized Versions of Black and White Motion Pictures. Notice of Proposed Rulemaking. Docket No. RM 86-IA [hereinafter cited as Registration Decision].

6. Registration Decision 1.

7. The chromoloid process reproduces three black and white prints, from a master positive, which key to one primary color each-red, blue and green. The three prints are combined onto a single full color film.

8. Registration Decision 10.

9. Id. at 5, citing comments submitted by Colorization, Inc.

10. Id. at 6.

11. Id. at 7.

12, Id.

13. Copyright does not protect facts.

14. Registration Decision 8.

15. Id. at 11.

16, 17 U.S.C.A. Sec.101 (West 1977).

17, 17 U.S.C.A. Sec.103(b) (West 1977).

18, 37 C.F.R. Sec.202.1(a).

19. 536 F.2d 486 (2d Cir.), cert. denied, 429 U.S. 857 (1976).

20. Registration Decision 8, quoting Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 909 (2d Cir. 1980).

21. 294 F.Supp. 545 (S.D.N.Y. 1968).

22. Registration Decision 9, quoting Pantone, Inc. v. A.I. Friedman, Inc., 294 F.Supp. 545, 547 (S.D.N.Y. 1968).

23. Registration Decision 10.

24. 37 C.F.R. Sec.202.1(a).

25. Registration Decision 10.

26. Id. at 11.

27. Id. at 10 (emphasis added).

28. Id. at 11-12.

29. Id. at 12.

30. Id. at 12-13.

31. The legislation proposes to add the following definition to 17 U.S.C. Sec.101: "'Artistic authors' of a motion picture shall be the principal director and principal screenwriter of the work."

32. Registration Decision 11.

"Update on the Film Colorization Debate" first appeared in 9 Entertainment Law Reporter Number 4, September 1987.

Arrow by Richard Greenstone, 2006